Does the Fatty Cow Suing ESPN Have a Case?

Some old Greek guy once said that the law is reason, free from passion. If that old chestnut held up under scrutiny there'd be a lot fewer pissed-off humans hand-pounding license plates in our sprawling prison-industrial complex. This contradiction inspired us to repurpose an old Noisey column, "Ask a Lawyer," to give us the opportunity to hit up one of our lawyer buddies and get him to drop the gavel on the weirdest legal issues of our stupid time. He'd only agree to speak with us anonymously, because lawyers are pussies. Enjoy!

The internet collectively pointed and laughed at a sleepy fat man on Monday, when news broke that he was suing MLB, ESPN, and two commentators for $10 million. The incident that sparked the lawsuit can be viewed above, but the long and short of it is that the plaintiff, Andrew Rector, passed out at a baseball stadium during a Red Sox–Yankees game and the ESPN commentators, Dan Shulman and John Kruk, said unflattering things about him on live TV.

Rector's lawsuit has been roundly mocked, as much for its chances of success as the grammatical mistakes and the colorful language littered throughout it. “MLB.com continued the onslaught,” it reads, “to a point of comparing the plaintiff to someone of a confused state of mind, disgusted disgruntled and unintelligent and probably intellectually bankrupt individual.”

The internet can be a cruel and unforgiving place, and this lawsuit, uploaded by Smoking Gun, was like throwing gasoline on top of burning gasoline. But the question we need to answer—the question that will determine whether or not you should eat a handful of Ambien and buy a field-level ticket to the next Yankees home game—is does the fat cow have a case? We asked a lawyer to weigh in.

VICE: Does this guy have a case for defamation?
Anonymous Lawyer: So the elements for the cause of action for defamation are a false statement reporting to be fact concerning another person or entity. Publication or communication of that statement has to result in harm caused to the person or entity who is the subject of the statement—such as harm to reputation—and the person who made the statement must have intended to cause harm, or at least have been negligent. So basically, you have to say something that's false about someone, and be at least negligent as to the truth of that statement. You have to publish that statement and then you have to harm the person's reputation.

Do you think this broadcast did that?
It seems as though the statements that were made about him are not statements of fact. Statements of fact would be something like, “You cheated on your wife,” “You're gay,” “You don't pay your taxes,” and that is different from an opinion of someone. There are many different defenses under defamation law, one of which is that it was merely an opinion of someone. Freedom of speech wants to protect our ability to give opinions on other people, provided that we're not saying a false statement that could be interpreted as fact and harm someone's reputation. It seems as though in this situation no statements of fact were made.

So it's probably safe to assume he's not going to be awarded $10 million for falling asleep at a baseball game.
If the allegedly defamatory assertion is expression of opinion rather than a statement of fact, defamation cannot be brought because opinions are inherently not falsifiable. There's no such thing as a false opinion. So that element—a false statement reporting to be fact concerning another person or entity—cannot be proven, and that's one of the main elements of the defamation claim. It seems as though he's going to fail to state the claim because of the fact that there was no false statement made about him.

A lot of baseball stadiums have things posted around that say that by entering the premises you are agreeing to being filmed. How much would something like that protect the announcers and MLB from things they said about someone on air?
That pertains more to rights of privacy than it would defamation. I don't have the actual language in those blanket releases, but usually they allow third parties to film you, and you may also be giving consent for them to do whatever they want with that footage, but usually that has to do with distribution of the footage, not really about the ways in which announcers may comment on the footage.

He's also attributing some statements made by random internet people to MLB and ESPN. For instance he complains that someone said he was, and I quote, a “fatty cow that need two seats at all time and represent symbol of failure [sic]". Now, that was not said by any of the people or entities named in the suit, but if he could find out who on the internet said that about him, would he have a case against them?
You can try to sue anyone for anything. But whether or not he would be able to meet the necessary elements of defamation, it seems that even those would be considered opinions.

So we can call him a symbol of failure and a fat cow in this article?
Yes.

Is there anything else he could sue these people for?
Not really. The fact that they focused in on him, he was at a game and had reason to assume that he would be filmed. This happens regularly. People catch fly balls. I remember seeing someone catch a fly ball, and he gave it to his son, and his son threw it back, and they became kind of temporary celebrities based on that. So there is a reasonable expectation in our society that if you go to a public event like this, you could end up being filmed, so I don't think an invasion of privacy suit would stand up either.

One thing I've always wondered about at these events is the Kiss Cam. Could pointing the camera at people without their consent and saying “kiss” be considered sexual harassment?
It seems highly unlikely that a court would find this to be sexual harassment. No one is obligated to kiss on the Kiss Cam. Presumably someone could try to bring a claim for sexual harassment or assault, but I don't think it would be a winner. If someone were kissed without their consent as a result of the Kiss Cam, and the person receiving the kiss sued the kisser, perhaps the kissee could attempt to include the stadium as a defendant who contributed to the sexual harassment, but that seems like a losing case, and we are pretty far in theoretical land at this point.

Do you know of any similar cases like this?
No.

How do you think the prosecution landed on $10 million? That seems high. 
A plaintiff in a defamation case is entitled to receive damages for any lost earnings, future lost earning capacity, and other lost business or economic opportunities that he/she suffered or is likely to suffer as a result of the defamatory statement. The plaintiff in some defamation cases is also entitled to recover damages for what is called pain and suffering. There are no guidelines for determining the value of mental pain and suffering and lost reputation. In most states, judges will instruct juries to use their good sense, background, and experience in determining what would be a fair and reasonable figure to compensate the plaintiff for pain and suffering.  However, in this case $10 million does seem very high.

The suit is riddled with grammatical errors and jumps in logic. It looks like a five-year-old wrote it. Would that be taken into consideration? Could it potentially affect the suit one way or the other?
Well, it would if the defendants hire an esteemed attorney, because he or she would be able to poke holes in the logic that was claimed, and a judge will look at that. Grammar and arbitrary formalities don't play directly into the determinations of lawsuits, but it can have indirect effects by making one side seem more legitimate and their arguments more plausible.

By bringing this lawsuit the plaintiff is turning himself into a much larger and more public representation of humanity's decay than MLB or ESPN ever did. Could that confuse the original issue, and would the court acknowledge that when considering the damage to his reputation and loss of future income?
When filing a lawsuit you have to consider that it's going to bring even more attention to the factual scenario that you're upset about. Sometimes people elect not to bring a lawsuit because they don't want to continue the public observance of what happened. I suppose the defendant could make the argument that the plaintiff is contributing to this loss of income, which he is claiming is arising from their defamation of him. Yeah, that's conceivably an argument that defendant could make to suggest a reduction of damages and a lack of mitigation of damages by the plaintiff.

So in your professional opinion he is not going to win this suit.
It does not seem like he's going to win this suit.

Our lawyer friend wanted us to tell you that these articles are for informational purposes only and do not constitute legal advice. They should also in no way be taken as an indication of future results, and are not intended to create (and the receipt does not constitute) an attorney-client relationship. Whatever that means.

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